The legal framework protecting cultural property in Syria

Syrian cultural property is protected under a broad legal framework made up of IHL, international treaties on transnational law enforcement, human rights law, and binding UN Security Council resolutions.

Cultural property as a battleground in Syria

The damage caused to cultural property in Syria is reflective of the manner in which the war has been fought. A large number of heritage sites and museums have had their infrastructure damaged as a result of being caught in the middle of hostilities, such as the Ancient Cities of Bosra and Aleppo.Footnote ¹⁰⁴ Sites such as Krak des Chevaliers and the Aleppo Citadel have been used for military purposes.Footnote ¹⁰⁵ Looting and illegal trafficking have emerged as sources of funding that contribute to the proliferation of arms, with groups that are well-organized and often armed systematically targeting numerous archaeological sites in Syria for clandestine excavations.Footnote ¹⁰⁶ Museums in Syria are also a cause for concern, and there have been many instances of looting of valuable cultural property. Armed groups, including ISIS, have deliberately targeted cultural property such as the sites at Palmyra.Footnote ¹⁰⁷

The destruction of heritage in Syria has also been politicized, with the government army and armed groups exchanging accusations about the destruction of Syria's heritage sites and using these accusations for propaganda purposes. The government blames armed Islamist groups for looting, while the armed groups emphasize the government's indiscriminate use of heavy artillery against historic sites.Footnote ¹⁰⁸ Both sides have been accused of embedding military positions in heritage sites.Footnote ¹⁰⁹ Control over cultural property has also become highly politicized, notably with Palmyra's Roman Theatre being used as a site for a concert by the Mariinsky Symphony Orchestra from St. Petersburg, RussiaFootnote ¹¹⁰ and subsequently severely damaged through a deliberate detonation by ISIS.Footnote ¹¹¹

Cultural property is thus at the front lines of the war in Syria. It is the battleground and target for new actors in the conflict and is being destroyed for propaganda purposes. All of this has put existing international law rules to the test. Some commentators have warned that the vocal condemnation of the destruction of cultural property in Syria in the media is considered by many ordinary Syrians as indifference to the losses of thousands of lives, and that the destruction of ancient sites and artefacts cannot compare to the degree of human suffering.Footnote ¹¹²

This is a concern that deserves attention. It is also a concern that has found its way into the deliberations of judges at the ICC. In the Al Mahdi case, judges made it clear that “[i]n the view of the Chamber, even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”.Footnote ¹¹³

This division – between crimes against property and crimes against persons – may, however, be an artificial one. The Special Rapporteur in the field of cultural rights, in reflecting on many of the submissions she has received, argues that the tangible and intangible dimensions of cultural heritage are closely interconnected. She posits that the protection of cultural heritage is part of the protection of human life. The destruction of tangible cultural property – broadly defined by the 1954 Hague Convention as including movable or immovable propertyFootnote ¹¹⁴ – leads to the destruction of the intangible, such as religious and cultural practices, traditions, customs, forms of artistic expression and folklore, a sense of history and memory, and the identity of a society or community. The Special Rapporteur highlights that “combined attacks on cultural heritage and people and their cultural rights”, as have been the case in Syria and Iraq, “spread terror, fear, and despair”.Footnote ¹¹⁵

An alternate perspective positions cultural heritage as an “international public good” that inherently deserves the attention and concern of the international community. Cultural internationalism and the opposing approach of cultural nationalism have both left their imprint on international legal instruments regarding cultural property.Footnote ¹¹⁶ Cultural internationalism sees cultural property as belonging to the cultural heritage of all people and creates a global interest in cultural property. This idea can be traced back to the Napoleonic era's notion of a “common heritage of mankind”,Footnote ¹¹⁷ which was for the first time formally reflected in the Preamble to the 1954 Hague Convention, stating that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”.Footnote ¹¹⁸ Cultural nationalism, in contrast, is focused on the notion that cultural property should remain in its country of origin, accessible to the society and community to which it belongs. Rooted in the principle of State sovereignty, cultural nationalism emphasizes that a people's cultural heritage is linked to cultural objects and thus demands their repatriation. This idea lies at the core of the 1970 UNESCO Convention. But the UNESCO Convention also demonstrates that these two notions are not incompatible. Cultural internationalism can encompass cultural nationalism.Footnote ¹¹⁹ Cultural objects can “belong” to humanity at large – and their destruction concern the entirety of mankind – but still be best preserved and appreciated within their own place, history, origin and setting.Footnote ¹²⁰ This idea is upheld by the UNESCO Convention, which considers that “cultural property constitutes one of the basic elements of civilization and national culture”.Footnote ¹²¹

From this perspective, there are striking parallels between the way in which the protection of cultural property and heritage has been conceptualized in international law, and the thinking behind the concept of crimes against humanity. The concept of crimes against humanity is generally seen as having two broad features. First, that the crime is so heinous that it is viewed as an attack on the very quality of being human.Footnote ¹²² Second, that the crime is so grave that it is an attack not just upon the immediate victims but also against all humanity, meaning that the entire community of humankind has an interest in its punishment. It has been noted that while rules proscribing war crimes address the criminal conduct of a perpetrator towards an immediate protected object, rules proscribing crimes against humanity address the perpetrator's conduct not only towards the immediate victim but also towards the whole of humankind, as they constitute egregious attacks on human dignity and on the very notion of humaneness. They consequently affect, or should affect, each and every member of mankind, whatever his or her nationality, ethnic group and location.Footnote ¹²³ It is this second element that bears striking similarity to the idea that an attack on the cultural property of any one people harms the cultural heritage of all humankind.

This idea has been upheld in international jurisprudence. At the ICTY, in assessing the seriousness of the offence of damage to cultural property in the Strugar case, the Trial Chamber observed that such property is, by definition, of “great importance to the cultural heritage of every people”.Footnote ¹²⁴ The consequence of such an approach is that the victim of the offence of damage to cultural property is thus broadly understood as a “people” rather than any particular individual. And despite this abstraction, the Chamber held that the offence involves grave consequences for the victim, meeting the same criteria of gravity as other grave breaches prosecuted at the ICTY.Footnote ¹²⁵ In the Jokić case, for instance, the Trial Chamber noted that the destruction and damage inflicted on the Old Town of Dubrovnik were very serious crimes, finding that “since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town”.Footnote ¹²⁶ In the Kordic and Cerkez case, the Trial Chamber described attacks on ancient mosques in Bosnia and Herzegovina as “an attack on the very religious identity of a people” and stated that as such, the attacks “manifest[ed] a nearly pure expression of the notion of ‘crimes against humanity’, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects”.Footnote ¹²⁷ As Judge Cançado Trindade explained in his opinion related to the 2011 order of the International Court of Justice (ICJ) regarding the case of the Temple of Preah Vihear in Cambodia, “the ultimate titulaires of the right to the safeguard and preservation of their cultural and spiritual heritage are the collectivities of human beings concerned, or else humankind as a whole”.Footnote ¹²⁸

And indeed, underlying the Al Mahdi conviction is the prosecution's emphasis on the human impact of his crimes, arguing that human suffering is an essential part of the destruction of cultural property. At the reparations stage of proceedings, judges identified the “international community” as among the victims of the crimes committed.Footnote ¹²⁹ In the judgment, the Trial Chamber noted that due to the UNESCO World Heritage status of the sites, “their attack appears to be of particular gravity as their destruction does not only affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community”.Footnote ¹³⁰ In support, the judges refer to the testimony of a witness who described how the entire international community, in the belief that heritage is part of cultural life, is suffering as a result of the destruction of the protected sites.Footnote ¹³¹ While clearly building on the jurisprudence of the ICTY, the Al Mahdi case at the ICC marks the first time that the international community as such has been identified as a victim during reparations proceedings. This extends the right to reparations to the international community at large. This is a bold and notable move, as traditionally the prohibition against attacking cultural property has not been associated with any human impact – and none of the articles of the cultural heritage conventions establish a link between damage to cultural property and harm caused to human beings, their social structure or religious practices. While they are founded on the idea that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind”,Footnote ¹³² it is the human rights movement and international criminal jurisprudence that have made the link between monuments and human identity explicit.

Another approach argues that crimes against property and crimes against people should not compete for our attention; that these are not issues subject to prioritization, as the protection of cultural property should be an integral element of any humanitarian effort. In August 2013, then-UNESCO director-general Irina Bokova emphasized:

This approach strongly echoes that of the Special Rapporteur in the field of cultural rights, equating the protection of cultural property with the protection of a fundamental tenet of human life.Footnote ¹³⁴

In practice, this has meant that the protection of cultural heritage has acquired a role in humanitarian response. The November 2015 strategy for the reinforcement of UNESCO's actions for the protection of culture and the promotion of cultural pluralism,Footnote ¹³⁵ adopted by the organization's 38th General Conference, identifies one objective as being to “[i]ncorporate the protection of culture into humanitarian action, security strategies and peacebuilding processes by engaging with relevant stakeholders outside the culture domain”, citing “humanitarian, security and peace-building actors” in particular.Footnote ¹³⁶ In February 2016, UNESCO signed a Memorandum of Understanding with the ICRC that envisions the sharing of information on cultural property at risk in situations of armed conflict, and the ICRC assisting in rescuing, evacuating or undertaking emergency safeguarding measures to protect specific cultural property at imminent risk.Footnote ¹³⁷ Then-UNESCO director-general Irina Bokova presented the partnership as testimony to the “growing global awareness that protecting cultural heritage is not just a cultural emergency but indeed a humanitarian imperative”.Footnote ¹³⁸ A discussion has branched out from this view as to whether the destruction of cultural property should trigger early-warning alarms as an indicator in the prevention of atrocities, and whether it can in and of itself trigger the “responsibility to protect”. In 2014, the UN Office on Genocide Prevention and the Responsibility to Protect developed a new Framework of Analysis for Atrocity Crimes, a tool for assessing the risk of genocide, war crimes and crimes against humanity, in which destruction of property of cultural and religious significance is considered a significant indicator in the prevention of atrocity crimes.Footnote ¹³⁹ This is upheld by historical example, with the restoration of cultural property contributing to the restoration of social and economic life. For instance, following the Spanish Civil War and, later, the Balkan Wars, “refugees and displaced people did not return to their former towns and villages until rebuilding of significant heritage sites occurred, even if this was many years later”.Footnote ¹⁴⁰

In 2015, UNESCO convened a group of experts to explore whether the notion of the “responsibility to protect”, as found in paragraphs 138–140 of Resolution 60/1 (in which the UN General Assembly adopted the 2005 World Summit Outcome), could be applied in the context of cultural heritage. The expert group recognized that the intentional destruction and misappropriation of cultural heritage can constitute war crimes and crimes against humanity and can indicate genocidal intent, and thus may fall within the scope of the “responsibility to protect”.Footnote ¹⁴¹ As Raphael Lemkin, the jurist responsible for articulating the crime of genocide, recognized: “Burning books is not the same as burning bodies … but when one intervenes … against mass destruction of churches and books, one arrives just in time to prevent the burning of bodies.”Footnote ¹⁴²

In many ways, the responsibility to protect is already part of the framework protecting cultural property and heritage. This is a testament to cultural property being an integral element of human life, an international public good and a humanitarian imperative, as set out above. For instance, the 1972 World Heritage Convention establishes a mechanism by which States can trigger international protective measures that can prevent damage to cultural property at risk, in the form of assistance in securing sensitive areas with fences, establishing surveillance and patrols, and issuing of warnings.Footnote ¹⁴³ The transnational nature of the legal obligations on trafficking of cultural property, as set out in the 1970 UNESCO Convention, involves all States Parties in protection activities. This means that should enforcement fail at the national level, there are mechanisms available that can assist the return of illicitly exported cultural property to a country like Syria.Footnote ¹⁴⁴ In a practical and concrete way, the UNESCO Convention obliges third States to undertake positive steps to protect cultural property at risk, in line with the common Article 1 obligation to “respect and ensure respect” for the provisions of the Geneva Conventions “in all circumstances”.Footnote ¹⁴⁵ This is an example of a practical measure that States can undertake within their own jurisdictions and in their relationships with the forces they support, in order to provide real and tangible protection in the context of the armed conflict in Syria; it demonstrates the unique nature of the international legal protections afforded to cultural property, and positions cultural property protections as a true international law enforcement effort.

Innovations in protection that have emerged in response to the destruction of cultural property in Syria

The protection of cultural heritage has emerged as one of the few areas in which the international community has galvanized and come up with innovative responses in Syria. The response has not been comprehensive or uniformly effective, but it has broadened horizons at a time and in a conflict marked by a lack of compliance with, and a general disregard for, international law. Starting from the ground, individuals and cultural institutions have taken on the role of first responders and filled the vacuum through mounting an effective civil society response. States have, perhaps most significantly, adopted concrete measures that have contributed to the protection of Syrian cultural property – and have laid the foundation for further protective interventions. Finally, international organizations have expanded their own actions to prevent the destruction of cultural heritage, stretching their mandates in response.

Non-State actors such as local volunteers and cultural institutions, both in affected countries and foreign States, have been the first to respond to threats to cultural property. Volunteer networks in local communities in Syria provide security and protect archaeological sites from illegal excavations, and safeguard museums from looters. They have also helped to recover looted items of cultural significance and collect information about objects at risk.Footnote ¹⁴⁶ Museums in foreign States, including in the United States and United Kingdom,Footnote ¹⁴⁷ have established capacity-building programmes to train Syrian and Iraqi antiquities professionals to protect museum collections against the effects of explosives, looting and other threats. For instance, the Smithsonian Institution's Cultural Rescue Initiative, through its Safeguarding the Heritage of Syria and Iraq Project,Footnote ¹⁴⁸ has trained Syrian museum workers on the use of sandbags and other materials and techniques that they employed to protect immovable ancient mosaics in Ma'arra Museum in Idlib.Footnote ¹⁴⁹ While these actions are commendable, it should be noted that they have been largely responsive and could have been avoided through better preventative action. For instance, under the 1972 World Heritage Convention, to which Syria is a party, Syria could have submitted a request for international assistance to protect cultural property at risk.Footnote ¹⁵⁰ Such assistance, in the form of securing sensitive areas with fences, establishing surveillance and patrols, and the issuing of warnings, could have been used as “preventative measures against looting … as soon as the outbreak of an armed conflict [became] inevitable, while the major channels of communication such as airports and roads remain[ed] open or safe”.Footnote ¹⁵¹

Most notably, third-party States have adopted measures that have demonstrated their ability to take on responsibility for the protection of cultural property in Syria. Through these measures, States – whether or not they are themselves party to the armed conflict in Syria – have contributed to ensuring respect for international law in Syria in line with their obligations under Articles 4(1) and 7(1) of the 1954 Hague Convention and common Article 1 of the Geneva Conventions. They have also developed innovative and effective protection mechanisms that have broadened the horizon beyond military assistance and intervention for States seeking to contribute to improving compliance with international law in Syria. While none of these measures protecting cultural property has been proclaimed as fulfilling States’ obligations to ensure respect for IHL, some of them have been articulated as a response to the widespread assault on cultural heritage in contemporary conflicts and as an imperative for peace. For instance, when presenting the new European Union (EU) policy on cultural heritage protection to the UN General Assembly in September 2017, EU high representative Federica Mogherini emphasized that the protection of cultural heritage is “a security and foreign policy matter”.Footnote ¹⁵² In adopting a revised Act to Protect Cultural Property, which implements the 1970 UNESCO Convention, Germany's federal government commissioner for culture and the media, Monika Grutters, said that the new piece of legislation would help “protect [the] cultural property … of other States more effectively against clandestine excavations and illicit trafficking … especially [in] crisis-ridden or war-torn countries, such as Syria and Iraq”.Footnote ¹⁵³ Such statements highlight these measures as a model for future action.

States, including the US, have adopted the practice of taking information from lists of cultural property sites in Iraq and Syria into consideration when planning military action.Footnote ¹⁵⁴ The UK has followed suit, by giving cultural institutions a role in engaging with arms bearers on their IHL obligations.Footnote ¹⁵⁵ The EU, in turn, has developed its first (and indeed the world's first) policy on international cultural relations, integrating cultural property protection experts into all fifteen EU military and civilian missions.Footnote ¹⁵⁶ Announced in September 2017 at the UN General Assembly, the new EU policy also commits to restoring damaged and destroyed cultural sites, and prohibits the import of all illicit cultural goods. This builds on several similar initiatives, such as the Victoria & Albert Museum Culture in Crisis Programme, through which the museum works closely to support law enforcement, nationally and internationally, and the British armed forces to develop strategies to prevent the illicit trade of cultural goods.Footnote ¹⁵⁷ Such developments appear to be part of a broader trend: in 2013, UNESCO developed a plan of action stemming from a regional training on Syrian cultural heritage, which proposed that the Syrian Directorate-General of Antiquities and Museums (DGAM) address the issue of illicit trafficking in Syria through “advocat[ing] with the military, in line with the 1954 Hague Convention, to avoid using major heritage sites for military purposes, based on the information collected on the ground on those sites”.Footnote ¹⁵⁸

Other States, with no military involvement in the region, have taken other measures. These measures include steps to preserve digital copies of documents that have become endangered due to the war; Finland has become one of the first countries in the world to serve as a haven for endangered documents from Syria, carrying out extensive digitization efforts in Damascus and storing the archives in Helsinki. This measure stemmed from a recommendation adopted by the 38th General Conference of UNESCO in 2015 that urged member States to take digitized cultural property into safekeeping. Only a few member States have so far seized the opportunity to participate in such safeguarding, but Finland serves as an encouraging example.Footnote ¹⁵⁹

Several other States have begun to operationalize Article 3 of the 1954 Hague Convention, which obliges States parties to safeguard cultural property. They have done this both through passing national legislation restricting the transfer of cultural property, such as in Germany,Footnote ¹⁶⁰ and through echoing the notion contained in Article 8 of the Convention, which envisions specially protected movable cultural property being placed in “a limited number of refuges intended to shelter movable cultural property in the event of armed conflict”, away from any military objectives and removed from any risk of damage. This operationalizing of the concept of refuges is one of the most exciting innovations in the area of cultural property protection.Footnote ¹⁶¹

The establishment of “safe havens” and “refuges” as an effective way to safeguard movable cultural property in time of conflict also builds on Switzerland's experience organizing the “Afghanistan Museum-in-Exile”. The Museum-in-Exile opened in 2001 and constituted a depository for the protection of Afghan cultural artefacts during the conflict in Afghanistan. The museum received more than 1,400 Afghan cultural objects from private donors and established a complete inventory created by dedicated volunteer specialists. The success of this initiative was secured by the successful restitution of the 1,400 objects to the National Museum of Afghanistan in Kabul in 2006, under the umbrella of UNESCO.Footnote ¹⁶² This notion of cultural property “safe havens” and “refuges”, while having long been envisioned under the 1954 Hague Convention, is now being revisited and is enjoying widespread support from States and cultural institutions. The Association of Art Museum Directors, representing the leadership of major art museums in the United States, Canada and Mexico, has even issued protocols for safe havens for works of cultural significance from countries in crisis.Footnote ¹⁶³

Building on this momentum, France and the United Arab Emirates have laid the groundwork for the creation of other similar “safe havens” for cultural property, to be responsible for the safekeeping and preserving of entrusted cultural heritage, for its inventorying, and for returning it to its owner or established source when requested. These broad principles were put down on paper in December 2016 in the Abu Dhabi DeclarationFootnote ¹⁶⁴ as an outcome from a conference on “Safeguarding Endangered Cultural Heritage” attended by forty countries. The declaration set out to pursue two ambitious, long term, goals to guarantee the further mobilization of the international community for the safeguarding of heritage:

In addition to emphasizing the role of UN institutions, particularly UNESCO, the declaration called for the support of the Security Council in achieving the aforementioned objectives. Following the Abu Dhabi Declaration, France, together with the United Arab Emirates, launched a fund, the International Alliance for the Protection of Cultural Heritage in Conflict Areas (ALIPH), based in Geneva, that will take urgent action in emergency cases and contribute to the evacuation and reconstruction of endangered or damaged cultural heritage.Footnote ¹⁶⁵ Seven countries – France, Saudi Arabia, Kuwait, the United Arab Emirates, Luxembourg, Morocco and Switzerland – have pledged contributions, and six others – Italy, the UK, Germany, China, the Republic of Korea and Mexico – have expressed political support for the initiative.Footnote ¹⁶⁶ With UNESCO acting as a member of the ALIPH board, this effort demonstrates the widespread interest among States in taking active measures to safeguard cultural property and ensure its protection from damage and destruction in armed conflict.

In turn, international organizations have stepped up their own efforts, stretching their activities, programmes and mandates to respond to the destruction of cultural property in armed conflict. The UNESCO 2013 Plan of Action addressed the issue of illicit trafficking by recommending to “train the Red Cross and Red Crescent staff in Syria, as well as the UN personnel in Syria to use site and monument evaluation forms, so that they could report on the condition of cultural heritage to DGAM and UNESCO when possible”.Footnote ¹⁶⁷ This suggests that humanitarian actors could take on the role of monitoring and documenting the destruction of cultural property, which would further integrate the protection of cultural property into the humanitarian response, beyond the potential role for the ICRC in assisting in rescuing, evacuating or undertaking emergency safeguarding measures to protect specific cultural property at imminent risk, as envisioned in the February 2016 UNESCO–ICRC Memorandum of Understanding.Footnote ¹⁶⁸ In 2014, UNESCO created an Observatory for the Safeguarding of Syria's Cultural Heritage, to monitor the state of buildings, artefacts and intangible cultural heritage, to combat illicit trafficking and to collect information in order to restore the country's cultural heritage once the fighting is over.Footnote ¹⁶⁹ The UNESCO director-general has called for the creation of “protected cultural zones” around heritage sites in Syria and Iraq; while this idea has so far not gained any traction, as a proposal it echoes the concept of neutralized, hospital and safety zones in IHL, marking a further potential innovation in the field of cultural property protection.Footnote ¹⁷⁰

Remaining gaps

Despite these innovations, significant gaps in cultural property protection response persist, leaving Syrian cultural heritage at risk from the acts of negligence, recklessness and deliberate targeting that have marked the waging of the war. Broadly speaking, these gaps fall into two categories – gaps in the normative framework and in implementation.

The most fundamental normative gap in the protection of cultural property stems from the 1954 Hague Convention and its Second Protocol, both of which endorse the concept of military necessity, which permits favouring military advantage over the protection of cultural property. While both the 1954 Hague Convention and its Second Protocol limit the circumstances in which cultural property can be lawfully targeted, restricting exceptions and misuse, this fundamental gap remains.Footnote ¹⁷¹ The Special Rapporteur in the field of cultural rights has taken aim at this gap, calling attention to the fact that the prohibitions on theft, pillage, vandalism, and misappropriation and requisition of cultural property are not subject to a military necessity exception and are absolute, and stating that “the military necessity exception is undoubtedly subject to abuse”, advocating for States to adopt the narrowest possible interpretation that would make any targeting or military use of cultural property “highly exceptional”.Footnote ¹⁷² Indeed, emerging norms reveal a move to a more protective approach in practice, signalling an increased desire on the part of States to preserve, for posterity, the cultural heritage of mankind, despite the possible exigencies of war.Footnote ¹⁷³ There are several indicative and encouraging examples. When the United States announced its intent to take whatever steps necessary to stop Axis traffic through Rome in 1943, there was a concerted effort to avoid sites of religious and cultural value. Airfields located in the suburbs were bombed, but the Axis military headquarters – undeniably a legitimate target – was left untouched as it was situated in the historic city centre.Footnote ¹⁷⁴ During the First Gulf War, Saddam Hussein had placed Iraqi aircraft next to invaluable archaeological monuments at the ancient Sumerian site of Ur. Yet, despite the legitimacy of this as a military target, the United States refrained from ordering its destruction.Footnote ¹⁷⁵ These examples are encouraging in that they reveal the ability and willingness of States to calibrate their targeting decisions in the course of hostilities to prioritize the protection of cultural property, even in cases where such targeting would be lawful under the existing legal framework.

Another gap in the normative framework protecting cultural property stems from its State-centric approach, which some have argued is ineffective. Cultural property protection, for instance as implemented in Syria since 2011, has been structured around the standards and practices enshrined within the 1954 Hague Convention and the 1970 UNESCO Convention. The policy emphasis of both is on the in situ protection of cultural sites and the recovery and return of stolen or looted cultural objects. Both have failed to stop the plunder and illegal trade of cultural objects from Syria. Thus, some have argued that instead of policy initiatives aimed at site protection and object recovery, a market-reduction approach could succeed by subduing demand.Footnote ¹⁷⁶ Representatives from auction houses have also argued, from the perspective of the art market, that there has been insufficient engagement with the art market on the part of stakeholders, and that auction houses should be seen not as adversaries but as partners in the fight against the illicit trafficking of cultural property.Footnote ¹⁷⁷

Finally, there is a lack of effective special protection under IHL for the employees or defenders of cultural property, and limited protection for transports and appliances used for cultural property.Footnote ¹⁷⁸ This problem is particularly stark in Syria, where by mid-2015, the Directorate-General of Antiquities and Museums had lost fourteen staff members who were protecting the country's heritage.Footnote ¹⁷⁹ Some were killed during shelling of the buildings they worked in, others by snipers on their way to work. Some were threatened to get them to cease their activities, and when they refused, they were killed. The case of Khaled al-Assad, a retired member of the DGAM and world expert on the site of Palmyra, who was killed by ISIS in August 2015, gained worldwide attention.Footnote ¹⁸⁰ DGAM field personnel regularly risk their lives to protect their cultural heritage by collecting and passing on information on archaeological sites, yet they enjoy no additional protection beyond their civilian status under international law. The Special Rapporteur in the field of cultural rights has highlighted the protection of the defenders of cultural heritage who are at risk as a “critical” question, citing the example of employees of the National Museum of Afghanistan, ordinary people in Northern Mali who hid manuscripts beneath the floorboards of their homes to protect them during the 2012 assault by Islamist armed groups, or those who peacefully protested the destruction of Sufi sites in Libya.Footnote ¹⁸¹ A human rights perspective on the protection of cultural heritage should emphasize the human rights of cultural first responders – those on the front lines in the struggle to protect it. They are the guardians of the cultural heritage of local groups, and indeed of all humankind, and thus critical players in the defence of cultural rights. The Special Rapporteur recommends that States respect their rights and ensure their safety and security, but also provide them, including through international cooperation, with the conditions necessary to complete their work, including all needed material and technical assistance, and offer them asylum when that work becomes too dangerous. In many circumstances, defenders of cultural heritage should be recognized as cultural rights defenders and therefore as human rights defenders. As human rights defenders, defenders of cultural heritage should be afforded the rights and protections that status entails, including protection by the State, legal assistance and effective remedy.Footnote ¹⁸² As the Office of the UN High Commissioner for Human Rights (OHCHR) has noted, a human rights defender is a person who acts to address any human right (or rights) on behalf of individuals or groups, including cultural rights.Footnote ¹⁸³

In the area of implementation, most critically, there has been a lack of compliance with legal protections for cultural property by armed groups. This has been aggravated by a lack of engagement with armed groups on this issue. Beyond appeals and statements of condemnation since the start of the Syrian conflict, organizations like UNESCO, the International Council on Monuments and Sites, and the International Council of Museums have held several meetings and organized training for employees of the DGAM, but no reported efforts have been made by international organizations to reach out to areas beyond government control, where the DGAM no longer has any operations or reach. Regions under the control of armed groups contain a great number of significant heritage sites and museums, which are at particular and increasing risk for looting and destruction. Indeed, the 1954 Hague Convention envisages that UNESCO should offer its services to all parties to a non-international armed conflict, including armed groups (and that any such contact “shall not affect the[ir] legal status”).Footnote ¹⁸⁴ Moreover, while the Convention only provides that States Parties, and not armed groups, can call on UNESCO “for technical assistance in organizing the protection of their cultural property”,Footnote ¹⁸⁵ the Secretariat to the 1954 Hague Convention developed an action plan that entails the possibility of establishing “contacts with the warring parties (including States and [armed] non-State actors as applicable) and send[ing] letters to them signed by the Director-General regarding the protection of cultural property in the event of armed conflict”.Footnote ¹⁸⁶ Nonetheless, UNESCO is prohibited by its Constitution from intervening in the internal affairs of member States,Footnote ¹⁸⁷ and there is no information available to suggest that UNESCO has taken steps to reach out to any of the armed groups operating in Syria or Iraq in order to further cultural property protection.Footnote ¹⁸⁸

There is also no publicly available information about the engagement of the ICRC, UN humanitarian agencies, or the UN Special Representative for Syria with any actors – whether armed group representatives in the context of political processes, or influential States – on the issue of cultural property protection. Some commentators have pointed out that any political opposition should develop a “cultural property protection” plan.Footnote ¹⁸⁹ Others have suggested using the few UN mechanisms granted access to both government- and armed group-controlled areas of Syria – for instance, expanding the UN chemical weapons mission (OPCW-UN Joint Investigative Mechanism in Syria) to include a small group of cultural experts, in order to put into effect the obligation of Syrian armed groups to abide by international treaty and customary law and protect cultural property.Footnote ¹⁹⁰ Another route could entail neutral non-governmental organizations such as Geneva Call, through its Deeds of Commitment mechanism, addressing the protection of cultural property as a standalone issue of focus. UNESCO has noted that “the nature of contemporary conflicts … presents a challenge, as they often involve armed non-State actors, with whom intergovernmental organizations cannot establish relations”, and has acknowledged that it has sought to close this gap through cooperating with Geneva Call.Footnote ¹⁹¹ In turn, Geneva Call has conducted specialized trainings on the protection of cultural heritage for top military commanders from the Free Syrian Army.Footnote ¹⁹²

Any protection response, and particularly one that involves the deployment of peacekeeping forces, could cover cultural property. The mandate of MINUSMA, since it was established in 2013, has included assisting the transitional authorities in the country with the protection of cultural and historic sites in collaboration with UNESCO. While Security Council Resolution 2347 goes a long way in recognizing that UN peacekeeping operations may encompass the protection of cultural heritage from destruction, illicit excavation, looting and smuggling in the context of armed conflicts, it remains to be seen whether the relevant authorities on the ground will request such assistance, as stipulated in the resolution.Footnote ¹⁹³ The EU's policy integrating cultural property protection experts into all of its military and civilian missions further bolsters this approach.Footnote ¹⁹⁴

It is important to note that the protection response has not yet entailed accountability efforts. In general, cultural property destruction has been rarely prosecuted, especially at the national level. The Special Rapporteur in the field of cultural rights highlighted this fact in her most recent report, expressing dismay at learning from cultural heritage professionals that, despite the many examples of destruction of cultural heritage contrary to international treaties, there have reportedly not been any national prosecutions on the basis of the 1954 Hague Convention.Footnote ¹⁹⁵

Concluding remarks and ways forward

To ensure effective protection of cultural property in times of armed conflict, States, civil society and international organizations must have a comprehensive toolkit at their disposal. Recent developments, culminating in UN Security Council Resolution 2347, go a long way in expanding the horizon of the types of measures that such a toolkit could contain.

As elaborated above, a variety of legal instruments, normative advances, jurisprudence and recent practice have added the following measures into the toolkit that can be used by third-party States to ensure the protection of cultural property, beyond the diplomatic protest and collective measures most commonly seen in State practice: the prosecution of perpetrators and support through mutual legal assistance; the identification of and return of illegally exported cultural objects; where the situation on the ground does not permit their return, the temporary storage of at-risk cultural objects in refuges; the evacuation of movable cultural property by humanitarian actors and dedicated institutions; international assistance in securing areas, surveillance and patrols, and issuing warnings; the taking of emergency safeguarding measures by international humanitarian actors; monitoring by on-the-ground humanitarian and other international presences; building the capacity of local first responders; the protection of cultural property defenders; embedding cultural property protection into multilateral peacekeeping, civilian and military missions; integrating cultural property protection into targeting and operational procedures; and the safeguarding of archives and documents through digitization. These measures are all, in part, both preventative and protective. As will be discussed below, the toolkit also contains remedial measures that States can take following the damage or destruction of cultural property, including repair, restoration and memorialization, as part of post-conflict reconstruction and peacebuilding efforts.

Prior to engaging in a protection response, however, it is crucial to understand why deliberate destruction of cultural heritage takes place. It is sometimes difficult to distinguish between ideological destruction and looting for economic reasons. Both overlapping sets of practices must be tackled, including in countries where the markets for looted artefacts are located. Deliberate destruction may happen for a variety of reasons, including as a strategy to destroy the morale of the enemy and terrorize local populations or as a means to eradicate other cultures, in particular of the vanquished so as to facilitate conquest.Footnote ¹⁹⁶ In some cases, the destruction of cultural heritage can indicate more devastating motives, including genocidal intent. The ICJ, in examining the case of Bosnia and Herzegovina v. Serbia and Montenegro, noted that “where there is physical or biological destruction, there are often simultaneous attacks on cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group”,Footnote ¹⁹⁷ even though the destruction of historical, cultural and religious heritage does not, as such, fall within the definition of the crime as set out in the Genocide Convention.Footnote ¹⁹⁸

In many recent examples, including in Syria, Iraq and Mali, destruction is part of the “cultural engineering” or “cultural cleansing” sought by diverse extremist armed groups who, rather than preserving tradition as some claim, seek to radically transform it, erasing what does not concur with their vision. They seek to end traditions and erase memory, in order to create new historical narratives affording no alternative vision to their own. Ending these forms of destruction requires tackling the fundamentalist ideology motivating them, in accordance with international standards, in particular through education about cultural rights, cultural diversity and heritage. As journalist Mustapha Hammouche, in assessing recent extremist attacks on cultural spaces, has noted: “In this global war, it is not our differences which motivate … hatred, but what we share: humanity and humanism itself.”Footnote ¹⁹⁹

Indeed, the notion of the relationship between cultural property and identity is of particular importance because the destruction of cultural objects and sites during wartime may have a severe impact on the identity of those people, communities and societies that survive. International criminal jurisprudence has reflected this notion, finding that acts committed against property which is part of the cultural heritage of a community attain an “especially qualified degree of gravity”, transcending the physical and economic value assigned to civilian property and emphasizing the symbolic and spiritual significance of cultural property. This makes the wilful destruction or damage of cultural property particularly serious, as it mutilates the very cultural and spiritual identity of the group that finds its expression through that cultural property. This approach, applied by the ICTY with respect to the shelling of the Old Town of Dubrovnik (a site included in the World Heritage List set up under the 1972 UNESCO World Heritage Convention), resulted in finding the destruction of institutions dedicated to religion, charity, education or the arts and sciences, as well as historic monuments and works of art and science, to affect the “existence of [the Old Town's] population”, which “was intimately intertwined with its ancient heritage”.Footnote ²⁰⁰ In the Strugar case, the Chamber transcended the traditional vision of human rights as enforceable and justiciable only when their breach affects one or more individuals specifically, and found that the right to preserve and enjoy one's own culture exists also to the extent that it is exercised in community with other members of one's group, resulting in a collective right. It is the exercise of this collective right that affects the identity of the group – and the protection of cultural property must have this notion at its core.Footnote ²⁰¹ Echoing this perspective, in welcoming Al Mahdi's transfer to The Hague, the prosecutor, Fatou Bensouda, said that the people of Mali “deserve justice for the attacks against their cities, their beliefs and their communities”, explaining:

In the historical consciousness of Syrians, close relationships between all the various ethnic and religious groups are embedded in the communality of religious and historic buildings, the sharing of material culture, and social ethics.Footnote ²⁰³ Cultural identity is associated with monuments and artefacts of ancestors from different periods of history. Among the starkest examples is the Umayyad Mosque in Damascus, which has been shared and identified as a place of worship by more than one religious group.Footnote ²⁰⁴

As discussed above, acts of deliberate destruction of cultural property are often accompanied by other large-scale or grave assaults on human dignity and human rights. As such, they have to be addressed in tandem, as part of the promotion of human rights and peacebuilding. The right to access and enjoy cultural heritage is critical in post-conflict situations; being denied such access can deepen wounds and divisions between communities.Footnote ²⁰⁵ Thus, peacemaking and peacebuilding processes should include the protection, repair and memorialization of cultural heritage. This must include the participation of those concerned, and the promotion of intercultural dialogue regarding cultural heritage,Footnote ²⁰⁶ to allow the memorialization of the past as places of memory or lieux de memoires,Footnote ²⁰⁷ or so-called “traumascapes”Footnote ²⁰⁸ (such as Ground Zero in New York). Intangible heritage that includes traditions or living expressions inherited from our ancestors and passed on to our descendants, such as oral traditions, performing arts, social practices, rituals, festive events, and skills for producing traditional crafts, must also be protected, restored, and if lost, memorialized. Footnote ²⁰⁹ There is some indication that international criminal justice recognizes this issue and has proposed a way forward. In the Katanga case, the judges of the ICC explained that symbolic reparations can offer a collective benefit in allowing the transmission of a larger memory.Footnote ²¹⁰ The judges issuing the reparations order in the Al Mahdi case followed suit and awarded collective reparations to the victims in Timbuktu, noting that “cultural heritage plays a central role in the way communities define themselves and bond together, and how they identify with their past and contemplate their future”.Footnote ²¹¹ The decision further quoted UNESCO, emphasizing that “the loss of heritage during times of conflict can deprive a community of its identity and memory, as well as the physical testimony of its past”, and that the “destruction of international cultural heritage … carries a message of terror and helplessness; it destroys part of humanity's shared memory and collective consciousness; and it renders humanity unable to transmit its values and knowledge to future generations”.Footnote ²¹²

Understanding this impact is critical, for it reveals a more varied and complex relationship between communities and their cultural heritage. The efforts of Syria's DGAM, archaeologists and local volunteers to protect cultural property from the Syrian military and armed groups, including ISIS, are indicative of the value that Syrians place on the monuments to their history. Monuments that international law views as belonging to humankind are part of the daily lives and realities of people living in Syria and part of the memories of those who have left. A Syrian archaeologist currently based in the United States, Salam Al Kuntar, told the New York Times: “I have a special love for Palmyra because the Temple of Baal is where my mother was born.”Footnote ²¹³ This tangible connection between people and their cultural heritage is what makes its damage and destruction so devastating – and measures to ensure its protection so critical.

After all, the protection of cultural heritage from assault – whether through evacuation, archiving, restoration or memorialization – is necessary as a pushback against the message of the perpetrators. Archaeologists have made this point:

The same attitude is often expressed by Syrians, creating an entry point for post-war reconstruction.

It is encouraging that the protection of cultural property is seen as being critical for reconciliation and post-war reconstruction of society, and is also increasingly recognized by States. – The Abu Dhabi Declaration starts by stating that cultural property is “a mirror of mankind, a guardian of our collective memory and a witness to the extraordinary creative spirit of humanity, [and that] world cultural heritage represents the foundation of our common future”.Footnote ²¹⁵ With the bold and innovative measures that have emerged in response to the destruction of Syria's cultural heritage, when viewed as part of States’ obligation to “respect and ensure respect” for IHL in all circumstances, States increasingly have the tools to contribute to that foundation.